Local 4, United Slate, Tile & Composition Roofers

National Labor Relations Board - Board Decisions

Dec 28, 1962

140 N.L.R.B. 384 (N.L.R.B. 1962)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 4, United Slate, Tile and Composition Roofers, Damp
and Waterproof Workers Association, AFL-CIO and Viddie
Stravinski and Avon Sheet Metal Co., Party to the Contract.
Case No. 22-CB-518. December 28, 1962
DECISION AND ORDER
On October 4, 1962, Trial Examiner Paul Bisgyer issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the Re-
spondent's exceptions and brief, and hereby adopts the findings, con-
clusions, and recommendations a of the Trial Examiner as herein
modified.
In the section of the Intermediate Report entitled "Concluding
findings," the Trial Examiner concluded that the Respondent caused
the Employer to lay off the Charging Party for nonpayment of a
union fine, in violation of Section 8(b) (2) and (1) (A) of the Act. We
agree. In the "Conclusions of Law," "Recommended Order," and
"Appendix," however, the Intermediate Report indicates that the
Respondent laid off the Charging Party. These statements in the
Intermediate Report are corrected to show that the Respondent caused
the layoff.3
ORDER
The Board adopts the Recommended Order of the Trial Examiner
as corrected.
"The Respondent ' s request for oral argument is denied as , in our opinion , the record,
including the Respondent 's exceptions and brief , adequately presents the issues and posi-
tions of the parties.
2 For the reasons set forth in his dissent in Isis Plumbing S Heating Co , 138 NLRB 716,
Member Leedom would not grant interest on the backpay or the fine.
a No. 3 of the "Conclusions of Law" shall read , in place of "By laying off . . "By
causing the layoff .. ; No 1(a) of the "Recommended Order" shall read, in place of
"Laying off . " "Causing the layoff .. . " ; and the first paragraph of the "Appendix"
shall read , in place of "Wa WILL NOT lay off ... ,' "WE WILL NOT cause the layoff . . . .
140 NLRB No. 37.
LOCAL 4, UNITED SLATE, TILE & COMPOSITION ROOFERS 385
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard by Trial Examiner Paul Bisgyer on August 23 and 24,
1962, in Newark, New Jersey, on complaint of the General Counsel issued on the
basis of a charge filed on May 14, 1962, and the answer of Local No. 4, United Slate,
Tile and Composition Roofers, Damp and Waterproof Workers Association,
AFL-CIO, herein called the Respondent. In substance, the complaint, as amended
at the hearing, alleges that the Respondent violated Section 8(b)(1) (A) and (2)
of the National Labor Relations Act, as amended, by causing Avon Sheet Metal Co.,
herein called Avon, to lay off Viddie Stravinski, the Charging Party, on or about
May 14, 1962, for the reasons that he failed to pay a fine which the Respondent had
imposed upon him for violating a union rule. In its amended answer, the Respond-
ent, among other things, denies the commission of any unfair labor practices and
affirmatively asserts that its alleged conduct was protected by the Act. Although
afforded an opportunity to argue their positions orally and to file briefs, the parties
did not avail themselves of it. The Respondent's motion to dismiss the complaint
made at the close of the hearing, on which I reserved ruling, is now denied in accord-
ance with my findings and conclusions set forth below.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY INVOLVED
Avon, a New Jersey corporation located in Newark, New Jersey, is engaged in the
business of providing and performing roofing and sheet metal work at construction
sites. During the calendar year ending December 31, 1961, Avon in the course of its
business operations performed services as a subcontractor for Frank Briscoe Co., Inc.,
for which it was paid more than $50,000. Frank Briscoe Co., Inc., in turn, is a
general contractor engaged in the construction of industrial, office, and other build-
ings. During the same calendar year 1961, Briscoe purchased materials valued in
excess of $500,000 of which materials exceeding $50,000 in value were purchased
and shipped directly to its operations in New Jersey from sources outside that State.
Accordingly, I find that Avon is, and has been at all times material herein, engaged
in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction herein.
If. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2 ( 5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Question presented
It is too well settled to require discussion that the Act forbids employers and unions
to impair employees' job tenure for nonpayment of fines or assessments imposed by
their union.' The question here presented is purely a factual one-whether the Re-
spondent caused the Charging Party's layoff for failing to pay a fine that it levied
against him for violating one of its rules. As usually happens in cases of this type,
there is a sharp conflict in testimony regarding the critical events in question.
B. The evidence
Viddie Stravinski has been in Avon's employ as a roofer for about 6 years and a
member of the Respondent for about 11 years. At the time of the events here in-
volved, the Respondent and Avon were parties to a union-security agreement covering
a unit in which Stravinski belonged?
i Section 8(a) (3) and 8(b) (2) ; The Radio Officers' Union of the Commercial Teleg-
raphers Union. AFL (Bull Steamship Company) v. N L R B, 347 U.S 17, 40-41
2 The Respondent does not invoke this agreement as a defense to the charge herein Nor
could It since the proviso to Section 8(a) (3) only sanctions enforcement of union-
secnrity agreements for nonpayment of initiation fees and periodic dues but not fines and
assessments.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About February or March 1962,3 Stravinski was assigned to a job by his foreman.
Presumably-or at least so it was found by the Respondent's executive board-this
assignment should have gone to another employee who had greater yard seniority
and Stravinski should therefore have rejected the assignment . On charges filed
against him, the Respondent's executive board on April 2 found Stravinski guilty
of violating a union rule and fined him $76.50, representing the 2 days' work lost by
the senior employee . Thereafter, Respondent's Business Agent John Critchley un-
successfully sought to collect the fine from Stravinski,4 even enlisting the assistance
of Leo Kotler, Avon's president. Indeed, Kotler credibly testified, in substance, that
before the date of Stravinski's layoff, Business Agent Critchley had communicated
with him several times; that Critchley told him that he had given Stravinski a dead-
line of several weeks within which to pay his $76.50 fine; that Critchley requested
him (Kotler) to lay off Stravinski if he failed to pay the fine, and that, when he
(Kotler) declined the request because he had no reason for taking such action,
Critchley replied that he would come down and do it himself.5
Since Stravinski failed to pay his fine, Critchley visited Avon's yard on May 14,
as he had previously advised Kotler he would do, and spoke to Kotler in the Com-
pany's office. According to Kotler's testimony, Critchley stated that he came to lay
off Stravinski unless he paid him the money he owed the Union and that he (Critch-
ley) had to take this action himself because Kotler would not. Kotler further testified
that he did not object to Critchely's contemplated action because it was solely a
union matter which was out of his "jurisdiction." Critchley, on the other hand, tes-
tified, in effect, that on this occasion he only inquired of Kotler whether he had any
success in persuading Stravinski to pay his fine and that in reply to Kotler's negative
answer, he told Kotler that Stravinski was taxing the Union's patience. As previously
indicated, I accept Kotler's account as more accurate and consistent with the pattern
of events.
Following this conversation, Business Agent Critchley entered the yard where
Avon's employees, as was customary, were congregated before starting work. Stra-
vinski testified that, while speaking to Victor Washko, a coworker, Critchley ap-
proached him and told him that he could not go to work because his fine was still
unpaid and that he (Stravmski) replied, "O.K. Jack." Corroborating Stravinski,
Washko testified that on this occasion he heard Critchley tell Stravinski that he
was going to hold him back from work and at that point he (Wasbko) walked
away because he did not believe it was any of his business to remains Critchley
denied instructing Stravinski to leave his job. According to Critchley. he visited
Avon's yard, not to see Stravinski, but, as indicated above, to find out from Kotler
whether he had more success that he (Critchley) had in persuading Stravinski
to pay his fine. He further testified that he happened to speak to Stravinski that
morning only because as he (Critchley) was leaving the yard he saw Stravinksi
at the gate and used that opportunity to remind Stravinski of his default in the
payment of his fine, which was endangering his right to union benefits, such as
hospitalization, and that he (Critchley) could no longer prevent his suspension
from the membership roles.
8 All the events material herein occurred in 1962.
4 Although the Respondent adduced some testimony that Stravinski was also delinquent
in the payment of his dues, it does not urge that it caused his layoff for this reason In-
deed, such a contention would be of dubious validity in view of the fact that on April 26,
at least, the Respondent had rejected Stravinski's tender of 3 months' dues because he did
not include the amount of his fine.
5 Concerning a conversation he had with Kotler before the critical May 14 episode in
this case, Critchley testified that he requested Kotler to speak to Stravinski and impress
upon him that he was risking loss of union benefits if he did not pay the money he owed
the Union. He denied, however, ever asking Kotler to lay off Stravinski. Although
Kotler did not demonstrate a facility for remembering dates of various conversations
which, in part, explains some of the confusion in his testimony, I find that his testimony
recited in the text of this report credible and consistent with the pattern of the events
found herein.
9 Although Stravinski stated in a pretrial affidavit, given to a Board agent when he filed
the charge in this case on May 14, that no one was present during his above conversation
with Critchley, he corrected this statement at the hearing by testifying that Washko was
present. Critchley contradicted this testimony. Washko, who impressed me as a truth-
ful and disinterested witness not given to fabricating testimony, however, confirmed
Stravinski's testimony in this respect Moreover, Stravinski's misstatement in his affidavit
could reasonably be reconciled with his and Washko's testimony in that Washko was not
present during the entire conversation because Washko left when he realized the personal
nature of the discussion
LOCAL 4, UNITED SLATE, TILL & COMPOSITION ROOFERS 387
I find it difficult to believe Critchley's asserted limited purpose of his visit to
Avon's plant. Obviously, if such were his purpose and no other, the telephone
would do very well as it did on other occasions when Critchley communicated
with Kotler. On the other hand, I find Stravinski's and Washko's versions of
the occurrence more in accord with the realities of the situation and plausibly ex-
plains the events that followed.
After Crrtchley left the yard, Stravinski informed Avon's President Kotler that
Critchley had laid him off. This information simply evoked Kotler's expression
of regrets that he could do nothing about it. Stravinski thereupon stated that he
was going to the Board's Regional Office to see what they could do for him.7 Later
that day Stravinski filed the charges in this case.
The next day, May 15, Stravinski reported for work. Before permitting him
to do so, Kotler stated that he (Kotler) would first have to call the Respondent,
suggesting at the same time that Stravinski pay the fine. Shortly thereafter Kotler
told Stravinski that he had telephoned Business Agent Critchley and informed him
that Stravinski's fine would be in the mail the next day and that Critchley replied
that Stravinski could return to work. Stravinski then resumed work without any
further interference from the Respondent. A money order for $76.50, the amount
of the fine, was mailed to the Respondent on or about May 19 8
C. Concluding findings
It is clear from the foregoing findings of fact that in order to force Stravinski
to pay the fine imposed upon him for violating a union rule the Respondent ar-
rogated to itself control over his job tenure without the slightest objection from
his employer who viewed Stravinski's delinquency strictly as a union matter out-
side the Company's "jurisdiction." However, as the Supreme Court pointed out
in The Radio Officers' Union of the Commercial Telegraphers Union, AFL v
N.L.R.B.,9 "The policy of the Act is to insulate employees' jobs from their organi-
zational rights" and obligations.10 Thus, no matter how commendable its efforts
may be to have its members maintain their good standing and thereby preserve
their union benefits, the Act forbids the union to bring about their layoff for non-
payment of a fine. Therefore, having caused Stravinski's layoff for such a reason,
I find that the Respondent caused Avon to discriminate against him within the
meaning of Section 8(b)(2) of the Act. I further find that, by thus demonstrating
control over an employee's job tenure to compel payment of a fine, the Respondent
also restrained and coerced employees in violation of Section 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and its free flow.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Since the Respondent, by means prohibited by the Act, forced Stravinski to pay
his fine of $76.50, I recommend that the Respondent refund this sum of money
to him. I also recommend that the Respondent reimburse Stravinski for the day's
pay lost by him by reason of the discrimination, less his net earnings for that day
In accordance with the decision of a majority of the Board in Isis Plumbing &
7 The foregoing findings are based on the combined testimony of Stravinski and Kotler
Whatever variance there is In their respective testimony, it relates to inconsequential
matters.
8 These findings are based on Stravinski's undisputed testimony, which I credit His
confusion regarding the date the money order was mailed does not affect my findings
0 347 U S. 17, 40.
10 The only exception is that contained in the proviso to Section 8(a) (3) of the Act
which authorizes employers and labor organizations to enter into certain union-security
agreements However, the Act specifically restricts the utilization of such agreements to
compel payment of initiation fees and periodic dues . The Radio Officers' Union of the
Commercial Telegraphers Union, AFL v. N L RD., supra, at 40-41.
681-492-63-vol. 14 0-2 6
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heating Co.," interest at 6 percent per annum shall be added to the amount of
backpay due from May 14, 1962, the day Stravinski was unlawfully deprived of
his employment.12 Moreover, I find that the reasons which impelled the Board
majority to award interest on backpay equally applicable to the refund of the fine.
I therefore also recommend that interest at 6 percent per annum be allowed from
the date Stravinski paid the fine to the Respondent.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Avon Sheet Metal Co., is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Respondent , Local No. 4, United Slate, Tile and Composition Roofers.
Damp and Waterproof Workers Association , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By laying off Viddie Stravinski from his job with Avon Sheet Metal Co., for
nonpayment of a fine imposed upon him for violating a union rule, the Respondent
caused an employer to discriminate against an employee in violation of Section
8(a)(3) of the Act and thereby engaged in unfair labor practices within the mean-
ing of Section 8(b)(2) of the Act.
4. By the foregoing conduct, the Respondent also restrained and coerced em-
ployees in the exercise of their rights guaranteed in Section 7 of the Act and thereby
committed unfair labor practices within the meaning of Section 8(b) (1) (A) of
the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that the Respondent, Local No. 4, United Slate, Tile
and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO,
Newark, New Jersey, its officers, agents, representatives, successors, and assigns,
shall :
1. Cease and desist from:
(a) Laying off Viddie Stravinski, or any other employee of Avon Sheet Metal Co.,
for failing to pay any fine imposed upon him or otherwise causing or attempting to
cause said employer to discriminate against any employee in violation of Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing employees in the exercise
of their rights guaranteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Refund to Viddie Stravinski the sum of $76.50 paid by him in satisfaction of
the fine imposed upon him and make him whole for any loss of earnings suffered by
reason of the discrimination against him, in the manner set forth in "The Remedy"
section of the Intermediate Report.
(b) Post in the Respondent's business offices and meeting halls, copies of the
attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the
Regional Director for the Twenty-second Region, shall, after being duly signed by the
Respondent's authorized representative, be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members are customarily
11 138 NLRB 716.
12 Since only 1 day's backpay Is involved there is no necessity for computing Interest
from the last day of the calendar quarter, as provided in Isis Plumbing c6 Heating Co.,
supra
13 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals. Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
VICTORY PLATING WORKS, INC. 389
posted. Reasonable steps shall be taken to insure that such notices are not altered, de-
faced, or covered by any other material.
(c) Sign and mail sufficient copies of said notice to the Regional Director for the
Twenty-second Region for posting by Avon Sheet Metal Co., at all locations where
notices to its employees are customarily posted, if the Company is willing to do so.
(d) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Intermediate Report and Recommended Order, what steps the Re-
spondent has taken to comply herewith.14
14 In the event that this Recommended Order be adopted by the Board, this provision
'shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL MEMBERS OF LOCAL No. 4 UNITED SLATE, TILE AND COMPOSITION
ROOFERS, DAMP AND WATERPROOF WORKERS ASSOCIATION, AFL-CIO, AND TO ALL
EMPLOYEES OF AVON SHEET METAL CO.
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT lay off Viddie Stravinski or any other employee of Avon Sheet
Metal Co., for failing to pay any fine imposed upon him or otherwise cause or
attempt to cause the said Employer to discriminate against any employee in
violation of Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a)(3) of the Act.
WE WILL refund to Viddie Stravinski the amount of the fine he was compelled
to pay us and we will make him whole for any loss of pay he may have suffered
because of the discrimination against him.
LOCAL No. 4, UNITED SLATE, TILE AND COMPOSITION
ROOFERS, DAMP AND WATERPROOF WORKERS AS-
SOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.
Victory Plating Works, Inc. and International Association of
Machinists, District Lodge No. 24 , AFL-CIO. Case No. 36-CA-
1121. December 31, 1962
DECISION AND ORDER
On May 9, 1962, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report.
140 NLRB No. 34.